Door Still Open for Fed Rec Public Comment, Obstacles May Exist

There’s still time to submit comments on proposed regulations to reform the process for federal acknowledgment of Indian tribes.

The Bureau of Indian Affairs (BIA) has extended the deadline to submit written comments on the proposed regulations until September 30.

In addition, two more public meetings will be held by teleconference on September 3 and 5. (Two additional teleconference meetings were held for federally recognized tribes earlier in August.) The conference calls will take place from 1:30 p.m. to 4:30 p.m. EDT at the following number: 1-888-323-4307; passcode 4823348. Public meetings are open to everyone. Transcripts of all tribal consultations and public meetings will be posted on the Indian Affairs website.

The deadline was extended and extra meetings scheduled because of the large number of comments already submitted and the high level of interest in the issue, Assistant Secretary – Indian Affairs Kevin K. Washburn said in a media release.

“With this extended comment period, the Department is providing more opportunities for comment and suggestions from tribes and the public than any other rule issued by Indian Affairs during this Administration,” Washburn said. “Input from tribes, including the 17 that have been recognized under the regulations, states, local governments, the public and non-federally recognized tribes will result in a better final rule.”

The proposed rule was released for public comment in May. With the exception of one provision – a third party veto that could prevent tribes that have been denied recognition the opportunity to apply for reconsideration – the proposed regulations have been almost universally praised by both recognized and non-recognized indigenous nations. The new rules would make the procedure more transparent, efficient, timely, and flexible, while maintaining the seven mandatory criteria and the integrity of the process. Some key upgrades include: doing away with filing a letter of intent to petition and instead having tribes simply file their petitions; requiring a tribe to show community and political influence/authority from 1934 to the present rather than from as early as 1789; giving weight to tribes with state-recognized reservations or tribes for which the federal government has held land since 1934; and eliminating the need for third parties to identify the petitioner as a tribe from 1900 to the present.

The original federal recognition regulations were adopted in 1978 and updated in 1994. Before 1978 the Interior Department considered requests for acknowledgment on a case-by-case basis. While the regulations established a structured procedure for evaluating federal acknowledgment, the system has been widely criticized as being too time-consuming, sometimes arbitrary and generally “broken,” Washburn said.

It’s not hard to understand the criticism: Since 1978 and as of November 2013, the BIA has processed 51 of the 356 petitions for federal acknowledgment it has received. Only 17 tribes have been recognized and 34 denied. But it’s also easy to understand why the process has moved at a snail’s pace: In numerous reports and at various hearings members of Congress have heard repeatedly that the federal recognition process is perpetually understaffed and underfunded. Furthermore, during the eight years of the Bush administration federal recognition and other Indian affairs came to a virtual standstill, according to former Interior Secretary Ken Salazar.

“It was an attitude that Indian country was not important and it manifested itself in a whole host of things — [such as] thousands of applications pending for taking land into trust that simply were not acted on,” Salazar said. “It was a bad time.”

Additionally, since Indian gaming soared to success from the mid-1990s until the 2008 recession, the federal recognition process has become increasingly politicized with opposition from anti-Indian groups, local communities and states.

Connecticut is the poster child for such opposition. In August 2008, a federal district court judge in Connecticut dismissed the Schaghticoke Tribal Nation’s appeal to restore its federal recognition, which was reversed – along with that of the Eastern Pequot Tribal Nation’s – after a relentless 18-month orchestrated campaign of political opposition by local, state and federal elected officials and a wealthy anti-Indian sovereignty group and its powerful White House-connected lobbyist, Barbour Griffith & Rogers (BGR).

Despite 1,200-plus pages of evidence – e-mails, depositions, letters, faxes and other documents showing a web of connections between the politicians, the lobbyists, the White House, the Connecticut governor, Sen. John McCain and others, the judge chose to exclude some of the most damning evidence – including all of the BGR documents – that supported the Nation’s claim that unlawful political influence overturned its federal recognition. The federal judge acknowledged that political pressure was brought to bear but dismissed the idea that it was effective.

“Although one may be sympathetic to suspicions that powerful political forces interfered with an independent review of their tribal recognition, the court must accept the evidence as presented at face value, in particular the testimony by the agency decision makers that they were not unduly pressured by particular politicians or the political climate at large,” the late Senior Judge Peter Dorsey wrote.

Connecticut politicians led by Sen. Richard Blumenthal oppose the proposed regulations and are once again exerting pressure on Washington decision-makers to make it impossible for the state’s three state recognized tribes – the Schaghticoke, the Eastern Pequot Tribal Nation and the Golden Hill Paugusetts – to re-petition for acknowledgment under the new rules. The politicians worry that if another casino opens in Connecticut, the gaming compacts with the Mashantucket Pequots and Mohegans would be voided and those tribes would no longer be bound to turn over 25 percent of their slot revenues to the state – a cut that has poured more than $6 billion into the state’s coffers over the past two decades.

The politicians managed to have inserted into the proposed rules the provision giving third parties veto power to quash a tribe’s request for reconsideration of its petition. But the provision has come under harsh criticism in the vast majority of written comments posted at the BIA website and from tribal leaders at a public hearing at the Mashpee Wampanoag government and community center in late July. So it remains to be seen whether a handful of elected officials from one of the smallest states in the country will prevail in exerting their political will over a process that could potentially affect all of Indian country.